Termination at an inopportune time: Legal situation and blocking periods

Under Swiss law, the principle of freedom of termination applies, which states that an employer, like an employee, can terminate an open-ended employment contract at any time. The person terminating the employment contract can invoke any reason as long as it is not abusive and therefore unlawful.

If an employer wishes to terminate an employment contract, they must take into account not only the reason for termination but also the period during which they are dismissing their employee. Although it is theoretically possible to terminate the employment relationship at any time, the Swiss Code of Obligations (CO) provides for several exceptions in Article 336c. These exceptions are known as blocking periods.

The Swiss Code of Obligations describes a total of four situations in which dismissal is not permitted: during military, civil defence or civilian service, in the event of illness or accidents, during pregnancy and after childbirth and in the case of services for foreign aid campaigns.

In detail, these blocking periods are defined in the CO as follows:

• During military or civil defence service, while serving in the Women's Army or with the Red Cross for more than eleven days, employers may not dismiss the employees concerned four weeks before and four weeks after the deployment.
• An employee may not be dismissed during the entire pregnancy and up to 16 weeks after giving birth.
• If an employee is ill or has had an accident and is therefore unable to work, their employer may not dismiss them for at least 30 days after they become unable to work. This period is extended after one and five years, depending on the length of service of the employee.
• If an employee provides assistance in a relief operation abroad ordered by the federal authorities, he or she may not be dismissed either.

If an employer terminates an employee's employment in these situations, this is referred to as dismissal at an inopportune time.

When do the qualifying periods apply?  

Blocking periods serve to protect employees against dismissal and therefore only apply in the event of dismissal by the employer. Employees who resign are not subject to these qualifying periods. In addition, the employee must have completed the probationary period in order to benefit from the protection against dismissal provided by blocking periods.

Whether or not the absence in question falls within a qualifying period depends on when the absence began. Here are a few examples:

• If an employee in his first year of service receives a letter of dismissal on 26 March, for example, which is dated 25 March, while he is equally unfit for work on 26 March, his dismissal is null and void.
• However, if the same employee has been unable to work since 24 March and receives his notice of termination on 26 April, the blocking period is generally over and the notice of termination is legally valid.
• If this employee was legally dismissed on 20 March with a notice period of one month and has an accident on 25 March, the notice period is suspended for the period of incapacity for work and continued after his return to work.
• If the employee has already worked for the company for six years and is now unable to work for a longer period of time due to an accident on 21 March, he or she is now subject to a 180-day blocking period during which he or she may not be dismissed by the employer.

Collective agreements or the employee's individual employment contract may provide for longer qualifying periods by mutual agreement, which offer correspondingly greater protection for the employee. However, it is not possible to fall short of the applicable periods by contract, as this would be contrary to the interests of the employee.

Good to know: The definition of blocking periods is easy to confuse with the conditions for continued salary payments if the employee is unable to work in accordance with Article 324a CO. However, the question of blocking periods for protection against dismissal has nothing to do with the entitlement to continued salary payments, which is why these legal articles should not be confused.

Cumulative blocking periods

It is possible for an employee to have several periods of incapacity for work. This may involve the same type of incapacity for work, e.g. in the case of successive illnesses. In such a case, it is possible to accumulate several blocking periods as provided for in Article 336c, paragraph 1 CO. If the illness is unrelated to the previous one or to several successive accidents, the employee benefits from a new blocking period.

Accumulation can also occur if different types of absences and incapacity for work are involved. For example, an employee may be prevented from working due to military service, then due to pregnancy and then due to an accident. In this case, she will benefit from successive suspension periods.

However, there are exceptions to the blocking periods that allow dismissal even during the periods described above. There are generally four cases in which the statutory blocking periods do not apply.

• There is a fixed-term employment contract that ends automatically at an agreed time and for which no notice period needs to be observed by the employer and employee.
• The employee terminates the employment contract at his or her own request.
• The employee is still in the initial probationary period and therefore does not yet enjoy any extended protection against dismissal.
• The employer terminates the employment contract without notice, immediately and with extraordinary cause.

Special case: Locking period for employees

There is only one case in which a notice period can also apply to employees. According to Article 336d, an employee is prohibited from resigning if they are deputising for their employer or line manager in their work due to an absence protected by a qualifying period.

If, for example, your superior fulfils their obligation to perform military service and you can and must deputise for them during your absence, your dismissal would be null and void within this blocking period.

Maternity protection = blocking period?

It is also important to note that the qualifying periods for protection against dismissal are not related to the various maternity protection benefits.

Under Swiss law, pregnant women or mothers are prohibited from working for eight weeks after giving birth and maternity leave is 14 weeks in accordance with Article 329f CO - irrespective of the 16-week blocking period during which the employee may not be dismissed. The qualifying period also applies to expectant mothers during the entire pregnancy.

However, the employees concerned may resign at any time during their pregnancy or after giving birth in accordance with the applicable notice periods, as they themselves are not subject to any further qualifying periods.

In principle, terminations are null and void if they are made during a blocking period. The employment relationship therefore continues - if the employer still wishes to terminate the contract, they must wait for the blocking period to expire before they can terminate the employment contract.

It is also possible that a blocking period only begins after notice of termination has already been given. In such a case, the applicable notice period is suspended from the start of the blocking period until its end and then continues to run (Article 336c, paragraph 2 and Article 336d, paragraph 2 CO).

Tip: Although employers should be aware of the blocking periods, it is advisable for employees who are dismissed without notice to inform their employer that the dismissal is null and void. Seek advice from an employment lawyer if you are unsure of your rights and obligations in the event of dismissal without notice and would like expert advice on how to proceed.